Kansas wins the first round in a legal fight with Texas over the $500-billion NBAF facility as judge rules the case was filed "prematurely" because the land deal has not been signed. Texas says it will re-file the complaint.

A federal judge has dismissed a lawsuit filed by a Texas consortium seeking to stop the Department of Homeland Security’s choice of Kansas for a new $500-billion biodefense lab.

However, Federal Court Claims Judge Mary Ellen Coster Williams decided the lawsuit was ”premature ” and dismissed it without prejudice, opening the way for the Texas Bio- and Agro-Defense Consortium to refile the lawsuit later, which the group said it may do.

Two months ago, the Texas consortium sued DHS over its rejection of a San Antonio site for the National Bio- and Agro-Defense Facility. The consortium asked Judge Williams to issue an injunction blocking the awarding of bids for NBAF, a $650-million lab that will be the nation’s premier biodefense research facility. In December, DHS selected a site on the Manhattan, KS, campus of Kansas State University for NBAF, which will replace a 50-year-old lab on Plum Island, NY.

The Texas Bio- & Agro-Defense Consortium claims that the decision to locate NBAF in Kansas was ”arbitrary, capricious, and an abuse of discretion and otherwise contrary to law.”

According to news reports, Judge Coster said in a hearing last month the lawsuit seemed premature because ”the lab may never materialize.” She also noted that a deal had not been made for Kansas to provide land in Manhattan, KS for the lab, stating that while the Kansas Board of Regents has agreed to provide the land, DHS has not signed that agreement.

”Instead of saying ‘no,’ the court simply said ‘not yet,” Michael Guiffre, the Texas consortium’s attorney, said. ”We’ll be right back where we started as soon as DHS figures out what it is doing.”

The Texas group had alleged that the department ignored the high risk of tornadoes in the region and the site selection process was tainted by politics. Texas was one of six potential sites for the lab. The Kansas site was recommended unanimously by a panel of staffers from DHS and the U.S. Department of Agriculture Department.

The lab is intended to replace an aging lab at Plum Island, N.Y., where foot-and-mouth disease research has been done since 1955. By law it has been confined to the island to avoid an accidental outbreak that could lead to the slaughter of millions of livestock. Other deadly diseases also will be researched at the planned lab.

Tom Thornton, president of the Kansas Bioscience Authority, issued a statement after the judge’s ruling, in which he said that the lawsuit’s dismissal keeps the development of the lab on track.

The federal government’s defense of its Kansas choice ”demonstrates Homeland Security’s continued recognition that Kansas is the right home for the NBAF because it is uniquely positioned to meet the national challenge of protecting the American food supply and agriculture economy,” Thornton said.

Bid were accepted two months ago by DHS for construction of the NBAF facility.

The consortium’s lawsuit claimed that Kansas had unfair influence with the DHS official overseeing the NBAF review, that DHS favored the state because it promised more in incentive packages than Texas did, and that DHS failed to consider the risk that the Kansas site may experience a severe tornado.

The proposed Texas NBAF site is a 100-acre tract within the 1,236-acre Texas Research Park, straddling Bexar and Medina Counties. The research park site is a few miles west of the city of San Antonio.

The federal lawsuit, entitled Texas Bio- & Agro-Defense Consortium v. the United States, was filed April 23. On May 1, Williams granteded a motion by the Kansas consortium allowing it to enter the lawsuit as an ”intervenor” siding with the U.S. government in the June 8 arguments. DHS contended the Court of Claims should not hear the case, arguing that the NBAF selection process did not constitute a procurement. Texas disagreed, citing the pending construction contract as well as a U.S. Court of Appeals ruling that defined procurement broadly enough to include pre-procurement planning.

BioRegion News reports that the Texas consortium is claiming Kansas had an unfair edge with the DHS official overseeing the NBAF review, Undersecretary Jay Cohen, because as a U.S. Navy official he approved an unspecified earmark sought by Dennis Hastert, the former Speaker of the U.S. House of Representatives. Hastert reportedly was hired to lobby for the Kansas site.

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